Bulger v Rocky View (County), 2013 ABQB 603

Court of Queen ’ s Bench of Alberta Citation: Bulger v Rocky View (County), 2013 ABQB 603 Date: 20131022 Docket: 1201 16317 Registry: Calgary Between: Douglas Bulger and Nancy Desai and the Springbank Community Planning Association Applicants - and - Rocky View County and the Council of Rocky View County and Bingham Crossing Properties Inc. Respondents _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice E.C. Wilson _________________________________________ ______________ Introduction [ 1 ] The following is taken from paragraph 1 of the Applicants’ brief: 1.

The Applicants, Douglas Bulger, Nancy Desai and the Springbank Community Planning Association, have brought the within Application seeking judicial review of a decision (“Decision”) of the Respondent Rocky View County (“County”).

The Decision was the result of a vote of the Council of Rocky View County (“Council”) following a public hearing (“Public Hearing”) held on October 30 and November 1, 2012, to approve an application by the Respondent Bingham Crossing Properties Inc. (“Bingham”) to re-designate certain lands (the “Lands”) from Farm and Ranch to Direct Control, enabling commercial development (the “Development”).

[2] The Amended Amended Application for Judicial Review raised a number of complaints – some interrelated, some discrete. [3] On August 29, 2013 Stevens J ruled on a number of these complaints, denying them all. [4] I am called upon to deal only with the following complaint: “Further, the Respondent Council erred in law or jurisdiction as it did not provide adequate and proper notice of the subject matter of thevotes, which resulted in affected parties not being fully aware of what was before the Respondent Council in conducting the above-mentioned votes and in passing the above-mentioned motions.” Discussion [5] The Applicants argue that inadequate notice of a public meeting before the Rocky View Council meant that some people,ignorant of the meeting and its purpose, never had an opportunity to make their feelings known to the Council, which may haveimpacted councillors’ voting one way or another. [6] None of the Applicants fall within that category.

All either attended or participated in the public meeting by way of writtensubmissions. [7] The Applicants, before me, purport to represent the interests of all those who were not aware of the meeting and who, as aresult, could not participate had they wished to do so. [8] But when pressed by the Court to explain the legal basis for this purported representation, the Applicants were not able tosatisfactorily do so. There is no class action certification.

There is no evidence of conformity with the Rules regarding litigationrepresentatives. [9] The Applicants can make no compelling complaint that they were not notified of the meeting because they, in fact, didparticipate in the meeting.

In lieu, the Applicants have filed affidavits from seven citizens. [10] Of the seven affiants who swear to not receiving direct notice of the meeting from the County, three of them actuallyparticipated in the meeting (Armstrong, Clarke-Watchuk, Laurie) and another intentionally chose not to attend despite knowing of themeeting (Coutts). [11] None of the seven affiants have chosen to bring this Application.

None of the seven affiants depose to wanting, let aloneempowering, the Applicants to be their spokesperson or representative. [12] Importantly, none of the seven affiants depose to any desire to participate in any fashion at any future rehearing should I orderone.

Analysis [13] It is reasonable to inquire what purpose is really being served by bringing this judicial review when no person who has beenallegedly frozen out of the democratic process is interested or concerned enough to come forward to make complaint and seek a remedy. [14] There is a remarkable parallel here to what was commented upon in Bridgeland Riverside Community Association v Calgary(City), 1982 ABCA 138 , [1982] A.J. No. 692 (C.A.) per Kerans, J.A. 20 It is common ground here that there might well have been persons affected by the amended development proposal who were entitled,by virtue of s. 82(3)(

d) of the Planning Act, 1977, to have notice. For the appellant, it is argued that error in failing to give notice in thisregard by the Board caused it to lose jurisdiction. The City replies that any error in this regard did not nullify the proceedings. ... 22 In my view, this ground also fails. The governing rule was expressed by the Supreme Court of Canada in Children’s Aid Society ofMetropolitan Toronto v. Lyttle (1973), (SCC), 34 D.L.R. (3d) 127, when it quoted with approval the statement that, “Itmakes no sense to speak of

an act being void unless there is some person to whom the law gives a remedy ...” [see p. 138] 23 The House of Lords in Ridge v. Baldwin, [1964] A.C. 40, had said that any breach by a tribunal of the rules of natural justice nullifiedthe proceeding. But the Privy Council, in Durayappah v. Fernando, [1967] 2 A.C. 337, perceived an exception to that rule. InDurayappah, the Minister had illegally dissolved the council for the municipality of Jaffna in Sri Lanka (then Ceylon) because heexercised his undoubted powers without giving notice to the council.

The Privy Council acknowledged this to be so, but says: Though the council should have been given the opportunity of being heard in its defence, if it deliberately chooses not to complain andtakes no step to protest against its dissolution, there seems no reason why any other person should have the right to interfere. 24 I understand that the Supreme Court, in the Lyttle case, accepted this rule. There, the argument was that a putative father had not beenserved with notice of the proceeding.

But the attack was made by somebody other than him. [15] This is a case where the Applicants rely on another’s position as a basis for asserting their own. Absent some authoritypermitting the Applicants to make complaint on behalf of others, I find that they have no standing to bring this application, regardless ofhow well intentioned they may be. [16] There is no resultant unfairness brought about by my ruling. As was noted by Kerans, J.A. at paragraph 26: I hasten to add that denial of this appeal would do no injustice to those unnamed, unnotified, persons not before us. They could have

attacked the decision of the Board successfully by prerogative writ, if not statutory appeal, provided that they were not guilty of unreasonable delay. [ 17 ] The Bridgeland decision and the foregoing remarks of Kerans, J.A. are fully consonant with the Federal Court of Appeal’s decision in Bell Canada v. Allstream Corp ., [2004] F.C.J. No. 1491 . [ 18 ] In that case Bell Canada had been ordered by the C.R.T.C. to disclose certain information about its contractual relations with its customers.

The legislation giving rise to the C.R.T.C. order mandated that no disclosure order could be made until it had considered “any representations from interested parties”. Bell argued that their customers were entitled to notice and that the C.R.T.C.’s failure to give notice was “a breach of the duty of fairness” and therefore the disclosure order must be set aside. [ 19 ] The Court of Appeal dismissed Bell’s appeal. [ 20 ] The Court said the following: 4 In our view, there is no merit to this appeal.

As a general rule, a party may not attack a decision of an administrative tribunal for breach of the duty of fairness solely on the basis of the tribunal’s failure to afford some other person their procedural rights.

It is not sufficient that the person relying on the alleged procedural defect would have benefitted if, as a result of the fair hearing given to the other person, the tribunal had made a different decision. 5 When conferred on persons whose interests may be adversely affected by an administrative decision, procedural rights are designed primarily to protect the interests of the holders of the procedural rights. If those persons choose not to impugn a decision for a breach of their procedural rights, normally no one else can.

Conclusion [ 21 ] In conclusion I find that the Applicants have no standing to represent others and, in any event, have no standing to bring this application on the purported basis of protecting the rights of others. [ 22 ] If I am wrong on both of these points, I will now consider the claim of inadequate or improper notice.

Introduction [ 23 ] The claim of inadequate notice in this case rests on the submission that the notice of the October 30, 2012 public meeting was not disseminated wide enough contrary to council policy. [ 24 ] Yet, the effective scope of the dissemination notice, at first blush, would appear quite compelling. I accept the following statements contained in paragraphs 19 and 20 of the Bingham brief: 19. On October 2, 2012, Rocky View County Administration (“Administration”) issued a notice regarding the October Hearing to landowners within a ½ mile radius of the Lands and to a wider area.

In addition, Administration published notice of the October Hearing in the Rocky View Weekly newspaper (the “Rocky View Weekly”) on October 2 and 9, 2012. The Rocky View Weekly is delivered to every taxpayer in Rocky View County. Finally, Administration posted notice on the Rocky View County Website. 20.

Furthermore, a map of responses prepared by Administration confirms that Council received submissions from across the Springbank area. [ 25 ] The public hearing opened shortly after 2:15pm on October 30, 2012 and adjourned at 8:40pm until 9:00am November 1, 2012 when it continued until shortly before 6:00pm with the last public speaker. The numerous witnesses, pro and con, were heard by Council.

In addition, they had received 434 written submissions plus informal petitions, pro and con the proposed by-law. [ 26 ] I find that the scope of the oral and written submissions is fairly described in paragraph 31 of the Rocky View Council’s brief: 31.

During the course of the Public Hearing, Council also heard from numerous speakers, both for and against, who raised numerous issues, including issues related to economic development, the need for employment in the area, the need for services and amenities in the area, the need to increase quality of life in the area through the addition of meeting places such as restaurants, coffee shops and places for the community to meet, the viability of the community with or without development of the type being proposed, the advantages and disadvantages of a rural as opposed to an urban based community, the advantages and disadvantages of residential versus commercial development in the area, the need to promote quality of life in the area and maintain the character of the community, the sustainable nature of the development, the need to resist annexation, the need for seniors housing in the area together with the desire to be able to keep seniors in the community, the need to provide a greater tax base, the need to promote fiscal responsibility, and the need to avoid debt. [ 27 ] The Applicants take no issue with the foregoing.

Their complaint is that as good as the notice was in reaching the hundreds of persons who participated in the meeting one way or another, the notice failed to meet the requirements of the Council’s own policy. Notification Requirements [ 28 ] Section 606(2) of the Municipal Government Act ( M.G.A.) mandates how a public hearing must be advertised. The Applicants concede that this legal requirement was met. I find that it clearly was. [ 29 ] Rocky View County policies also speak to notice requirements. Policy 307(1) which relates to development applications, such as the one at bar, states: 1.

For Planning & Development applications in primarily Agricultural areas consisting of mainly un-subdivided ¼ sections: All

landowners within a ½ mile of the subject lands are to be circulated and notified of the public hearing date. Further the public hearing notices are to be advertised in the County’s approved newspaper and placed on the County’s web page. Thus, the close by neighbours, i.e. within ½ mile of the development, are to be “circulated and notified of the public hearing date”. The Applicants agree that this was done here (see paragraph 2 of their Brief).

None of the seven affiants fall within this geographic area. [ 30 ] The Applicants define “circulate and notified” to mean that a Notice of Public Hearing is to be mailed to these landowners (paragraph 5 of Applicants’ Brief). Counsel for the Rocky View Council and County do not dispute this

interpretation. [ 31 ] Having read the Notices at Tab 13 of the Record, it is clear that they have been mailed to the landowners. I am satisfied that mailing landowners a notice of the public hearing with a description of the application being considered by Council is synonymous with landowners being “circulated and notified” as prescribed by Policy 307(1). [ 32 ] The Applicants’ complaint and real crux of their application is that there was a breach of Policy 307(5) which reads as follows: 5.

In all instances where Staff see potential substantial impacts as a result of a proposed development, Staff will err on the side of caution and notify landowners within a wider area than is defined in the above 4 situations. [ 33 ] There are numerous problems in interpreting this policy. First, there no longer is a requirement to “circulate and notify” landowners – only a notification is required. The Applicants ignore this distinction and submit that it is still a “circulate and notify” provision.

I cannot agree for the simple fact that Council’s decision not to include this phrase cannot be interpreted as being but an oversight requiring the Court to judicially amend the policy to now include this phrase. [ 34 ] The manner of how to “notify” simpliciter is not described.

The Applicants submit it can only be met by “Staff” directing a broader mass mail out which is not only not stated in the policy but, because of the additional cost it would entail, would also be contrary to Policy 307’s stated purpose which was articulated by Council as follows: Purpose: The current procedures for public notification regarding planning applications exceed, by far, those set out in the Municipal Government Act and Subdivision and Development Regulations.

However in the light of the need to maximize use of Council’s resources and due to budgetary constraints, and the fact that there are alternative information sources for the public (i.e. the County’s newspaper and web page), the following amendment to the current policy was adopted. [ 35 ] A more practical

interpretation of the word “notify” – reflective of both cost concerns and the need for greater public awareness – is therefore called for. For instance, rather than a direct mail out, posting on mailboxes might meet the requirements of “notify”. So could stationary signage.

So would emailing constituents or employing pre-recorded telephone “robo-calls” to constituents’ telephone numbers. [ 36 ] Arguably, there could surely be little reason to complain of inadequate notice if the staff – rather than utilizing some method at county expense – chose to rely on the anticipated mass communiques, perhaps repetitive communiques, sent out by community organizations to members of the community as clearly occurred here. [ 37 ] In my view, Council deliberately chose not to describe or detail any type of notification procedure.

In my view, Council left the decision of how to notify to Staff, for the simple reason that Policy 307(5) is the notification policy of last resort and will only be triggered – not by Council dictate – but by Staff decision. [ 38 ] Staff is only to take action, according to Policy 307(5), where “Staff see potential substantial impacts”. What is meant by “potential substantial impacts” – aside from the pluralisation? How are “substantial impacts” measured? Nowhere is “staff” defined. Does it mean that any one employee makes the decision? Is it a group decision?

And if it is a group decision, must it be unanimous or will a majority be satisfactory? [ 39 ] To the extent that the Applicants’ case is constructed upon their own assertion that the proposed bylaw would inevitably cause “potential substantial impacts”, it is undercut by an entire absence of evidence, either in the record or in the affidavits, of anyone making inquiries of “staff” to obtain their views on these matters. [ 40 ] In the absence of evidence to the contrary, it is appropriate that the Court presume that the staff performed its task in keeping with Council’s policy. [ 41 ] Before concluding, it may also be observed that Policy 307(5) requires that, when invoked, geographical notification of landowners is extended to “a wider area” than the usual ½ miles notification zone.

But how much “wider” that is to be is not defined. [ 42 ] At paragraph 5 of their Brief, the Applicants concede that notice was mailed to the people in the ½ mile zone “plus a few agricultural sections and the Springbank Airport”. [ 43 ] Whether this “wider area” notification was a product of happenstance or reflective of Policy 307(5) is not known, but the fact is that this admission by the Applicants does, to some degree, undercut their claim. [ 44 ] The Court is mindful of the recently filed (August 22, 2013) affidavit of one of the Applicants – Nancy Desai who provided information, primarily through exhibits to her affidavit, which she says shows that the “Notification Zone” did not exceed the ½ mile requirement.

Having reviewed that material, the Court finds itself confused as to what the exhibits actually mean. Further, to the extent Ms Desai offers conclusory or interpretative remarks of the comments of her interlocutor Ms Jiang, such is inadmissible hearsay since it is being adduced for the truth of those assertions. As a result I have ignored it.

Conclusion [ 45 ] For the foregoing reasons, I am unable to find that there was or appears to be a breach of Policy 307(5). This is due to deficiencies in the evidence and the associated difficulties with the

interpretation of that policy. Accordingly, there is no basis for a judicial review to proceed further. [ 46 ] I agree the Applicants’ complaint about procedural unfairness is really a complaint that the staff of the County acted unreasonably in setting the notification zone. In that event I wholly adopt the following response in the Brief of counsel for the County, as a complete answer: 57. The reasonableness of any decision with respect to setting the notification zone is not before this Court.

It was not raised by the Originating Application for Judicial Review and has only been raised peripherally in the Applicants’ Brief. The Applicants are contesting the adoption of a bylaw by the County not an administrative decision that the Applicants allege may have been made by the County’s employees. 58. In so far as the Applicants argue that the Proposed Bylaw should be overturned due to an allegedly unreasonable decision regarding the provision of notice,

section 539 of the MGA expressly bars any challenge of a bylaw on the ground that it is unreasonable. [ 47 ] In the unusual circumstances of this application, it is not appropriate to conduct a judicial review of Council’s decision because the Applicants lack standing to bring this application; alternatively, that there is no evidence of a breach of Notification Policy 307(5) that could support a complaint of procedural unfairness; alternatively a complaint that challenges a bylaw on the ground that it is unreasonable is statute barred by s. 539 of the M.G.A . [ 48 ] If the parties are unable to agree upon costs the Court will do so based solely upon written submissions from the parties received within 30 days of release of this decision.

Heard on the 19 th day of September, 2013. Dated at the City of Calgary, Alberta this 22 nd day of October, 2013 . E.C. Wilson J.C.Q.B.A. Appearances: John Blair, Q.C. David Farmer for the Applicants William Barclay for the Respondents Rocky View County and The Council of Rocky View County Michael P. Theroux Brian P. Reid for the Respondent Bingham Crossing Properties Inc.